The Board of Education Lives On, if Only to Be Sued

On Jan. 9, 2003, Jamie Perez was slashed by two fellow students at Evander Childs High School in the Bronx. He recovered, and his mother, Nancy Torres, sued the City of New York for negligence, claiming lax security.

New York Board of Education seal

Her lawyer, Richard J. Katz, might ordinarily have filed suit against the Board of Education, except that a year before the assault, the State Legislature had voted to vest the mayor with the power to appoint the schools chancellor. As part of the new governance, a Panel for Educational Policy was created, a majority of whose members the mayor appointed.

City lawyers insisted nonetheless that Ms. Torres had sued the wrong party - that the education board was still liable. But a Bronx judge ruled that “in light of the wholesale transfer of power and responsibility from the Board of Education to the mayor, the city may not now shield itself from liability.” An appellate court, however, reversed the decision, in effect voiding Ms. Torres's claim.

“The case got dismissed,” Mr. Katz said. “It was a travesty.”

A separate case now pending before the state's highest court, the Court of Appeals, raises the same issue of liability in a case involving a suit against the city's school system.

Many lawyers and their clients have discovered that if you have a legal complaint against New York's public school system, you cannot fight City Hall.

You have to specifically sue the city's Education Department or, better yet, the Board of Education.

You may have thought that the board was abolished years ago. That after the Legislature established a mayoral Education Department and after the board's totemic Downtown Brooklyn headquarters at 110 Livingston Street was converted to condos, the embodiment of the school system's immutable bureaucracy was finally defunct. That if you had been slashed, or had slipped when you arrived for a parent-teacher conference, your recourse now would be to sue the city rather than the obsolete board.

You would have been wrong.

“No defendant is duty bound to tell you you're suing the wrong party,” says Arnold E. DiJoseph III, a lawyer who on Ms. Torres's behalf unsuccessfully asked the Court of Appeals to review the Appellate Division's absolution of the City of New York in the Perez case.

Almost no one wants to make it easier to sue in this litigious society.

But lawyers for the city sometimes seem to have gone out of their way not to volunteer that the school board, which most New Yorkers believe went the way of the blackboard, still exists legally as the governing corporate incarnation of the Education Department and its Panel on Educational Policy.

“The Board of Education is the name in the state education law,” said Marge Feinberg, a spokeswoman for the department (but not for the board).

On more than one occasion, negligence lawyers were surprised to be advised by the Education Department that their notice of claim was “returned because the Department of Education is not the legally proper entity upon which to serve such document.”

Worse, still, is when they filed suit against the city only to learn later - too late, because the 90-day period in which to file again had expired - that the city was deemed not liable legally for the school system's mistakes. (Adding to the confusion, officials say legal papers may be served on the city's Law Department at 100 Church Street.)

Lawyers for the city liken the board's legal standing to that of the Health and Hospitals Corporation and the Housing Authority, which also must be named specifically in lawsuits.

Of the three, though, the city's official directory lists only the Education Department as a mayoral agency.

As far as the public is concerned, responsibility for the school system has been vested for a decade in a mayoral department.

Since Mayor Michael R. Bloomberg persuaded the Legislature to scrap the old school board, he has appointed the chancellor and a majority of the 13 members of the Panel for Educational Policy. and he has volunteered to be held accountable for its successes and failures.

In 2002, when the mayor was granted control, a Bloomberg spokesman explained, “We didn't pursue the name change legally, but we're pursuing it in every other sense, from stationery to business cards to when it's talked about publicly.”

Googling “Board of Education” and “City of New York” whisks you to the official Education Department's Web site, which says the Panel for Educational Policy “took the place of the Board of Education.”
Still, state education law specifies that “the board of education of each city school district of a city with 125,000 inhabitants or more according to the latest federal census is hereby continued as a body corporate.”

Ninfa Segarra, the last president of the old board, said on Thursday that she was surprised that it still existed, adding that the board's unanticipated survival “may be a way of hiding ongoing litigation.”

Although the Perez case was dismissed in 2007 by the Appellate Division, which ruled that the city and the board remained “separate legal entities,” Mr. Katz, the original lawyer for the young man's family, is still being sued for malpractice because he filed the litigation against the city instead of the board.

“I didn't do anything wrong,” Mr. Katz said, “but I don't blame him.”

Mr. DiJoseph, who handled the appeal, was asked why lawyers still sometimes sue the city by mistake.
“Bad news travels slowly,” he replied.

“For every other purpose they're a city agency except for this one,” Mr. DiJoseph said of the department, “and the only reason for them not to be a city agency is not to pay the money.”

This post has been revised to reflect the following correction:

Correction: May 6, 2013

Previous versions of this post misstated the name of an advisory board formed in connection with mayoral control of the schools. It is the Panel for Educational Policy, not the Panel on Education Policy.

A version of this article appeared in print on 05/06/2013, on page A19 of the NewYork edition with the headline: The Board of Education Lives On, if Only to Be Sued .